Don’t rely on courts to save our democracy

The South African Constitution contains many provisions that place a duty on the state to do or not to do things. The drafters of the Constitution, perhaps knowing that rulers often tend to act not in the best interest of society as a whole but in their own interest, wrote these obligations into the Constitution so that they would not be “extra’s” – mere luxuries that the government of the day could choose to pursue (usually a few months before an election) when it felt like it.

The state has a duty to promote the achievement of equality (section 9), to take reasonable measures to provide access to housing (section 26) and health care (section 27), to take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis (section 25), and to respect and promote freedom of expression and the media (section 16).

The President has a duty to promote all that will advance the Republic, and oppose all that may harm it; to protect and promote the rights of all South Africans; to discharge his duties with all his strength and talents to the best of his knowledge and ability and true to the dictates of his conscience; to do justice to all; and to devote himself to the well-being of the Republic and all of its people (schedule 2).

Section 237 of the Constitution further states that “all constitutional obligations must be performed diligently and without delay”.

Often these duties are not fulfilled as required by the Constitution – and more often they are not performed “diligently and without delay”.

For example, instead of actively promoting respect for people with disabilities, instead of taking action to address the homophobia, sexism and other kons of prejudice (like racism and xenophobia) in our society, instead of spending money wisely and efficiently to help give people who do not have the ability to do so themselves (because of poverty and the effects of past discrimination) to gain access to houses, decent health care and work, the government of the day often seems to be too scared to address the prejudices, deeply rooted hatred and patriarchal attitudes of the public, and often spends the available money wastefully (on R27 loaves of bread and R1.1 million cars for Ministers, expensive consultants who can tell the government what is wrong when we all know what the problems are).

Section 2 of the Constitution states that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” In the light of the above a reader asks:

Now I’m going to ask what is probably an abominably stupid question: Why don’t our Constitutional Court judges, in their role of upholders of our supreme law, stand up as one and pronounce on any violation of our constitution as and when it happens? Why is it that some individual or opposition party first has to grovel before the CC when they feel the public’s rights are being violated in order to get a pronouncement?

As a technical matter this is indeed an “abominably stupid question”. In a constitutional democracy courts adjudicate disputes brought before it for adjudication. Courts rely on citizens or other interested groups like NGO’s or social movements (in our case, usually citizens or other organisations with the money to pay for expensive lawyers) to prepare and argue such cases.

Courts do not have research departments that can go out and detect breaches of constitutional duties, that can gather the evidence that would persuade courts that such breaches had indeed occurred and and that can present courts with all the arguments that would allow them to make findings after carefully considering all the evidence and legal issues for and against any finding that a breach of the Constitution had indeed occurred.

Courts are therefore not institutionally equipped to play this role. In any case, even if they did have the institutional capacity to do so, it would be wrong for courts to get involved in the investigation of breaches of the constitution. This is because courts are supposed to be independent and to act without fear, favour or prejudice. This means courts cannot become both investigators of, and then final arbiters on, the issues they have investigated. If they did, they would become embroiled in issues in which they themselves have a vested interest and they would be required to become judges in their own cause. This would undermine the legitimacy and credibility of the courts and erode public trust in the courts.

But in a less technical sense, the question posed by the reader is perhaps quite relevant. Why don’t the courts save us from the flagrant disregard for the Constitution by the legislature the executive and private actors by pronouncing on breaches of the Constitution “as and when they happen”?

Well, my answer would be that this is the wrong question to ask. Courts cannot save our democracy as it is by far the weakest branch of government. As Justice Johan Kriegler wrote in S v Mamabolo in a slightly different context:

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

The fact is that – in the absence of disputes brought to the courts by litigants – citizens (not the courts) are the one’s who are best placed to hold the legislature and the executive to account and to force them to comply with their constitutional duties. As citizens in a democracy (a democracy with both representative and participatory aspects), we are the ultimate and most powerful guardians of the Constitutions.

Yes, courts can (and should) hold the legislature and executive to account in individual cases brought to it by citizens, NGO’s and social movements and should declare such acts or omissions unconstitutional when these do not conform to the dictates of the Constitution. If they do not do so and instead choose on a regular basis to decide cases in favour of the other branches of government in a vain attempt to keep these branches happy, the judges would not be fulfilling their constitutional duty to uphold the Constitution. This will erode public trust in the judiciary.

But very few cases of constitutional breaches actually reach the courts. Citizens and citizen organisations are therefore potentially far more powerful and can be far more efficient and effective in holding the other branches of government to account than our judiciary. Of course, citizens can only do so if they do not fear repercussions for daring to do so. If citizens and organisations fear state repression, community ostracism or ridicule and ad hominem attacks from the predatory conservative forces who might have captured the state, then they will not take action to protect and advance the Constitution.

If citizens have a misplaced respect for their rulers – for highly emotional but irrational reasons or out of a fear of embarrassing their leaders with whom they have an emotional affinity born out of a shared history of struggle – and therefore do not wish to criticise the members of the legislature or the executive who are not doing what they are obliged to do by the Constitution, then the courts on their own will not be able to ensure that the Constitution remains a living document that is respected and protected by most if not all in society.

One of the greatest dangers to our democracy is not a compliant or timid judiciary, but a compliant and timid citizenry who might either be too scared of losing their status, influence or access to power and money-making opportunities to hold the rulers to account, or might have a misplaced loyalty to the governing party – instead of a loyalty to the Constitution and to the achievement of a more just and fair society based on respect for the Rule of Law.

I would therefore argue that a passive citizenry poses probably the gravest danger to our democracy. As we know all too well from a myriad of examples around the world, passive citizens who are either too scared, too worried about protecting their own short term interests, or too infused with a misplaced emotional loyalty to their rulers will destroy their own future.

Where citizens willingly hand over the power (which in a democracy ought to belong to the voters) to a ruling clique who WILL abuse this power and trust and WILL – eventually – act in ways that are detrimental to the interest of all citizens (except those who are members of the ruling clique or have strong connections with that clique), those passive citizens will help to destroy the democracy and with it their own prospects for a better life.

In a society where the majority of citizens give a carte blanche to the ruling clique to do what they want, life will become nasty, brutish and – perhaps – even short for a majority of citizens. Courts will not be able to stop this. Hoping that they would or relying on them to do so, would be irresponsible and naive.

Only where citizens are prepared to act in the interest of society as a whole and in their own long term (as opposed to short term) interest, will a constitutional democracy stand a good chance of surviving the inevitable machinations of a predatory ruling elite. In South Africa, many members of social movements, labour organisations such as Cosatu and some NGO’s have realised this, but because of the understandable emotional identification of the majority of citizens with the current governing party, this is still a small minority of the population.

Of course, active citizens should use constitutional litigation strategically to mobilise fellow citizens and should approach courts when appropriate to try and win legal victories for individual litigants or for groups whose rights have been infringed. They can also make use of other organisations – such as the Human Rights Commission (HRC) – to place pressure on the government to do the right thing (as has happened in the Western Cape – to the great consternation of Helen Zille who is now doing everything she can to discredit the HRC).

But if we all sit back and fold our arms in the hope that an unelected and relatively powerless judiciary will fight our battles for us, we will only have ourselves to blame if the country ends up as a truly predatory state in which the rulers look out only for themselves and for those with the money to bribe them.

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